In an appeal against the affirmation of a lower court's finding that the appellant encroached on a public passage, the High Court found no legal question remaining to be answered as the impugned order relied on undisputed material facts. The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 611 of 1987
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 611 of 1987 Date of decision : 10.1.2014
Gurbachan Singh ........Appellant Vs. Jagat Singh and others ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Present:Mr. G.S. Jaswal, Advocate, for the appellant None for the respondents
Jasbir Singh, J. (Oral)
It is not disputed at the time of arguments, that the land in dispute, which was shown with Marks 'ABCDEF' in the site plan, attached with the plaint, was a passage, left during consolidation proceedings. That passage leads up to the land, owned by respondent No.1/plaintiff Jagat Singh.
Respondent No.1/plaintiff Jagat Singh filed a suit claiming that he along with respondents No.2 and 3, were the joint owner in possession of land, measuring 7 Kanals and 4 Marlas, falling in Khasra No. 7//24/1 (6-16), 24/2 (0-8), situated in Village Mansurpur, Teshil Dasuya, District Hoshiarpur. It was further stated that the appellants/defendant No.1 had un-authorisedly occupied the passage left during consolidation proceedings leading up to the above land.
Upon notice, reply was filed. Taking various technical
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RSA No. 611 of 1987
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objections, the Trial Court framed the following issues :-
Thereafter, the parties led evidence and on analysis thereof, all
the issues were decided in favour of respondent No.1/plaintiff.
It was specifically held by the trial Court that passage shown
in the site plan marked as 'ABCDEF', is a public passage, which has wrongly been encroached upon by the appellant. To arrive at that conclusion, it was observed as under :-
“ISSUES NO. 1 AND 2
Both these issues are interconnected and therefore, they have taken together. The onus to prove these issues lies upon the plaintiff and in order to prove these issues, the learned counsel for the plaintiff Shri R.S. Miani argued that the passage shown with letters ABCDEF in the site plan Ex.P1 is a public passage and this has been so held in the judgment dated 1.12.1984 passed by Shri Lakhbir Singh, PCS, Sub
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RSA No. 611 of 1987
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Judge Ist Class, Dasuya. The certified copy of which is Ex.P2 and in this judgment under Issue No.1, it has been specifically mentioned that the passage in dispute is the public passage which was carved out during the consolidation operation. In addition to this, the learned counsel for the plaintiff has also placed reliance upon the Aks Shajra Ex.P3 which depicts the existence of the public passage which is 2 Karams in width and it approaches to the land of the plaintiff and defendants No.2 and 3. On the other hand, the learned counsel for the defendant No.1 Shri B.S. Ghotra, has vehemently argued that there was no passage in existence even at the time of the consolidation operations nor the said passage in existence at present. There is another passage on the Northern side of the land of defendant No.1 which approached to the land owned and possessed by the plaintiff and defendants No.2 and 3. In the disputed area he has planted Spada trees and has also grown paddy crop therein. But when he was subjected to cross examination, he has specifically admitted that the passage in dispute is a public passage which is owned by the Government and the passage in dispute is blocked on the spot by planting the paddy crop and previously, it was used by the plaintiff. The defendant has alleged in his statement that he is in possession of the property where he has planted the spada trees and has sown paddy crop since 1958 when the consolidation operation in the village took place but this assertion of defendant No.1 is falsified in view of the judgment Ex.P2 passed by Shri Lakhbir Singh, PCS, the then learned Sub Judge Ist Class, Dasuya in which it has been specifically mentioned that there is a public passage in existence which approaches to the land of the plaintiff and the defendants. Moreover, a Local Commissioner was also appointed to assert the existence of the passage in question and after visiting the spot he submitted his report Ex.P5 vide which he came to the conclusion that the passage in question
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is a part of Khasra No. 154 and it has been encroached upon by defendant No.1 by planting Spada trees and by growing Wheat crop etc. The objections to the report of the Local Commissioner were filed but no evidence was led and therefore, it is evidence that the objections to the report of the Local Commissioner were filed for the sake of objections and the defendant has not taken it seriously. Moreover, when he was subjected to cross examination he has stated that he cannot say whether the Local Commissioner has given the correct report or not. So, from the evidence on the record, it has been amply proved that the passage shown with letters ABCDEF is a public passage, which has been encroached and blocked by defendant No.1 by planting Spada trees and sowing the Wheat crop etc. Therefore, both these issues are decided in favour of the p;plaintiff and against defendant No.1.”
Against judgment and decree dated 28.8.1986, the appellant went in appeal, which was dismissed on 28.11.1986. Findings given by the trial Court, were affirmed, holding that the appellant had wrongly encroached upon a public passage.
No law point has been raised at the time of arguments to rebut
pure finding of fact raised before the Courts below.
Dismissed.
(Jasbir Singh) Judge
10.1.2014 Ashwani
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3 issues framed by the court
Whether the appellant's appeal against the affirming of the lower courts' finding regarding the encroachment on a public passage is maintainable.
Whether any legal point arises to rebut the pure findings of fact recorded by the Trial Court and First Appellate Court.
Whether to allow or dismiss the appeal.
Gurbachan Singh
Jagat Singh
Jasbir Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
